SB1510sam002 101ST GENERAL ASSEMBLY

Sen. Jacqueline Y. Collins

Filed: 4/5/2019

10100SB1510sam002 LRB101 08498 CPF 59131 a

AMENDMENT TO SENATE BILL 1510

AMENDMENT NO. ______. Amend Senate Bill 1510, AS AMENDED, by replacing everything after the enacting clause with the following:

"Section 5. The Nursing Home Care Act is amended by changing Sections 2-106.1, 2-204, 3-202.05, and 3-209 and by adding Section 3-305.8 as follows:

(210 ILCS 45/2-106.1)

Sec. 2-106.1. Drug treatment.

(a) A resident shall not be given unnecessary drugs. An unnecessary drug is any drug used in an excessive dose, including in duplicative therapy; for excessive duration; without adequate monitoring; without adequate indications for its use; or in the presence of adverse consequences that indicate the drugs should be reduced or discontinued. The Department shall adopt, by rule, the standards for unnecessary drugs contained in interpretive guidelines issued by the United States Department of Health and Human Services for the purposes of administering Titles XVIII and XIX of the Social Security Act.

(b) Psychotropic medication shall not be administered prescribed without the informed consent of the resident or , the resident's surrogate decision maker guardian, or other authorized representative. "Psychotropic medication" means medication that is used for or listed as used for psychotropic antipsychotic, antidepressant, antimanic, or antianxiety behavior modification or behavior management purposes in the latest editions of the AMA Drug Evaluations or the Physician's Desk Reference. No later than January 1, 2021, the The Department shall adopt, by rule, a protocol specifying how informed consent for psychotropic medication may be obtained or refused. The protocol shall require, at a minimum, a discussion between (i) the resident or the resident's surrogate decision maker authorized representative and (ii) the resident's physician, a registered pharmacist (who is not a dispensing pharmacist for the facility where the resident lives), or a licensed nurse about the possible risks and benefits of a recommended medication and the use of standardized consent forms designated by the Department. The protocol shall include informing the resident, surrogate decision maker, or both of the existence of a copy of: the resident's care plan; the facility policies and procedures adopted in compliance with subsection (b-15) of this Section; and that all of the resident's care plans and the facility's policies are available to the resident or surrogate decision maker upon request. Each form developed by the Department (i) shall be written in plain language, (ii) shall be able to be downloaded from the Department's official website, (iii) shall include information specific to the psychotropic medication for which consent is being sought, and (iv) shall be used for every resident for whom psychotropic drugs are prescribed. The Department shall utilize the rules, protocols, and forms previously developed and implemented under the Specialized Mental Health Rehabilitation Act of 2013, except to the extent that this Act requires a different procedure, and except that the maximum possible period for informed consent shall be until: (1) a change in the prescription occurs, either as to type of psychotropic medication or dosage; or (2) a resident's care plan changes. The Department shall not be liable for the implementation of these rules, protocols, or forms. In addition to creating those forms, the Department shall approve the use of any other informed consent forms that meet criteria developed by the Department. At the discretion of the Department, informed consent forms may include side effects that the Department reasonably believes are more common, with a direction that more complete information can be found via a link on the Department's website to third-party websites with more complete information, such as the United States Food and Drug Administration's website. The Department or a facility shall incur no liability for information provided on a consent form so long as the consent form is substantially accurate based upon generally accepted medical principles and, in the case of the Department's liability, if the Department references the website links.

Informed consent shall be sought by the facility from the resident unless the resident's attending physician determines that the resident lacks decisional capacity, as determined under the Health Care Surrogate Act. If the resident lacks decisional capacity, the facility shall seek informed consent from the resident's surrogate decision maker.

For the purpose of this Section, "surrogate decision maker" means the following persons to be given priority in the order presented: (1) the guardian of the resident appointed under the Uniform Adult Guardianship and Protection Proceedings Jurisdiction Act; (2) the resident's attorney-in-fact who has been designated under the Mental Health Treatment Preference Declaration Act; (3) the resident's health care agent who has the authority to give consent under the Illinois Power of Attorney Act; (4) the resident's surrogate decision maker under the Health Care Surrogate Act; and (5) the resident's resident representative, as that term is defined under Section 483.5 of Title 42 of the Code of Federal Regulations.

In addition to any other penalty prescribed by law, a facility that is found to have violated this subsection, or the federal certification requirement that informed consent be obtained before administering a psychotropic medication, shall thereafter be required to obtain the signatures of 2 licensed health care professionals on every form purporting to give informed consent for the administration of a psychotropic medication, certifying the personal knowledge of each health care professional that the consent was obtained in compliance with the requirements of this subsection.

(b-5) A facility must obtain voluntary informed consent, in writing, from a resident or the resident's surrogate decision maker before administering or dispensing a psychotropic medication to that resident.

(b-10) No facility shall deny admission or continued residency to a person on the basis of the person's or resident's, or the person's or resident's surrogate decision maker's, refusal of the administration of psychotropic medication, unless the facility can demonstrate that the resident's refusal would place the health and safety of the resident, the facility staff, other residents, or visitors at risk.

A facility that alleges that the resident's refusal to consent to the administration of psychotropic medication will place the health and safety of the resident, the facility staff, other residents, or visitors at risk must: (1) document the alleged risk in detail; (2) present this documentation to the resident or the resident's surrogate decision maker, to the Department, and to the Office of the State Long Term Care Ombudsman; and (3) inform the resident or his or her surrogate decision maker of his or her right to appeal to the Department. The documentation of the alleged risk shall include a description of all nonpharmacological or alternative care options attempted and why they were unsuccessful.

(b-15) Within 100 days after the effective date of this amendatory Act of the 101st General Assembly, all facilities shall implement written policies and procedures for compliance with this Section. The Department shall thereafter have the discretion to review these written policies and procedures and either:

(1) give written notice to the facility that the policies or procedures are sufficient to demonstrate the facility's intent to comply this Section; or

(2) provide written notice to the facility that the proposed policies and procedures are deficient, identify the areas that are deficient, and provide 30 days for the facility to submit amended policies and procedures that demonstrate its intent to comply with this Section.

A facility's failure to submit the documentation required under this subsection is sufficient to demonstrate its intent to not comply with this Section and shall be grounds for review by the Department.

All facilities must provide training and education, as required under this Section, to all personnel involved in providing care to residents and train and educate such personnel on the methods and procedures to effectively implement the facility's policies. Training and education provided under this Section must be documented in each personnel file.

(b-20) Any violation of this Section may be reported to the Department for review. At its discretion, the Department may proceed with disciplinary action against the licensee of the facility and facility administrative personnel. In any administrative disciplinary action under this subsection, the Department shall have the discretion to determine the gravity of the violation and, taking into account mitigating and aggravating circumstances and facts, may adjust the disciplinary action accordingly.

(b-25) A violation of informed consent that, for an individual resident, lasts for 7 days or more under this Section is, at a minimum, a Type "A" violation. A second violation of informed consent within a year from a previous violation in the same facility regardless of the duration of the second violation is, at a minimum, a Type "A" violation.

(b-30) Any violation of this Section by a facility may be prosecuted by an action brought by the Attorney General of Illinois for injunctive relief, civil penalties, or both injunctive relief and civil penalties in the name of the People of Illinois. The Attorney General may initiate such action upon his or her own complaint or the complaint of any other interested party.

(b-35) Any resident who has been administered a psychotropic medication in violation of this Section may bring an action for injunctive relief, civil damages, and costs and attorney's fees against any person and facility responsible for the violation.

(b-40) An action under this Section must be filed within 2 years of either the date of discovery of the violation that gave rise to the claim or the last date of an instance of a noncompliant administration of psychotropic medication to the resident, whichever is later.

(b-45) A facility subject to action under this Section shall be liable for damages of up to $500 for each day that the facility or person violates the requirements of this Section.

(b-55) The rights provided for in this Section are cumulative to existing resident rights. No part of this Section shall be interpreted as abridging, abrogating, or otherwise diminishing existing resident rights or causes of action at law or equity.

(c) The requirements of this Section are intended to control in a conflict with the requirements of Sections 2-102 and 2-107.2 of the Mental Health and Developmental Disabilities Code with respect to the administration of psychotropic medication.

(Source: P.A. 95-331, eff. 8-21-07; 96-1372, eff. 7-29-10.)

(210 ILCS 45/2-204) (from Ch. 111 1/2, par. 4152-204)

Sec. 2-204. The Director shall appoint a Long-Term Care Facility Advisory Board to consult with the Department and the residents' advisory councils created under Section 2-203.

(a) The Board shall be comprised of the following persons:

(1) The Director who shall serve as chairman, ex officio and nonvoting; and

(2) One representative each of the Department of Healthcare and Family Services, the Department of Human Services, the Department on Aging, and the Office of the State Fire Marshal, all nonvoting members;

(3) One member who shall be a physician licensed to practice medicine in all its branches;

(4) One member who shall be a registered nurse selected from the recommendations of professional nursing associations;

(5) Four members who shall be selected from the recommendations by organizations whose membership consists of facilities;

(6) Two members who shall represent the general public who are not members of a residents' advisory council established under Section 2-203 and who have no responsibility for management or formation of policy or financial interest in a facility;

(7) One member who is a member of a residents' advisory council established under Section 2-203 and is capable of actively participating on the Board, or, if the Department is unable to identify a member meeting these requirements, one member who shall be a certified sub-state ombudsman experienced in working with resident councils; and

(8) One member who shall be selected from the recommendations of consumer organizations which engage solely in advocacy or legal representation on behalf of residents and their immediate families; .

(9) One member who is from a nongovernmental statewide organization that advocates for seniors and Illinois residents over the age of 50;

(10) One member who is from a statewide association dedicated to Alzheimer's disease care, support, and research;

(11) One member who is a member of a trade or labor union representing persons who provide care services in facilities; and

(12) One member who advocates for the welfare, rights, and care of long-term care residents and represents family caregivers of residents in facilities.

(b) The terms of those members of the Board appointed prior to the effective date of this amendatory Act of 1988 shall expire on December 31, 1988. Members of the Board created by this amendatory Act of 1988 shall be appointed to serve for terms as follows: 3 for 2 years, 3 for 3 years and 3 for 4 years. The member of the Board added by this amendatory Act of 1989 shall be appointed to serve for a term of 4 years. Each successor member shall be appointed for a term of 4 years. Any member appointed to fill a vacancy occurring prior to the expiration of the term for which his predecessor was appointed shall be appointed for the remainder of such term. The Board shall meet as frequently as the chairman deems necessary, but not less than 4 times each year. Upon request by 4 or more members the chairman shall call a meeting of the Board. The affirmative vote of 7 6 members of the Board shall be necessary for Board action. A member of the Board can designate a replacement to serve at the Board meeting and vote in place of the member by submitting a letter of designation to the chairman prior to or at the Board meeting. The Board members shall be reimbursed for their actual expenses incurred in the performance of their duties.

(c) The Advisory Board shall advise the Department of Public Health on all aspects of its responsibilities under this Act and the Specialized Mental Health Rehabilitation Act of 2013, including the format and content of any rules promulgated by the Department of Public Health. Any such rules, except emergency rules promulgated pursuant to Section 5-45 of the Illinois Administrative Procedure Act, promulgated without obtaining the advice of the Advisory Board are null and void. In the event that the Department fails to follow the advice of the Board, the Department shall, prior to the promulgation of such rules, transmit a written explanation of the reason thereof to the Board. During its review of rules, the Board shall analyze the economic and regulatory impact of those rules. If the Advisory Board, having been asked for its advice, fails to advise the Department within 90 days, the rules shall be considered acted upon.

(Source: P.A. 97-38, eff. 6-28-11; 98-104, eff. 7-22-13; 98-463, eff. 8-16-13.)

(210 ILCS 45/3-202.05)

Sec. 3-202.05. Staffing ratios effective July 1, 2010 and thereafter.

(a) For the purpose of computing staff to resident ratios, direct care staff shall include:

(1) registered nurses;

(2) licensed practical nurses;

(3) certified nurse assistants;

(4) psychiatric services rehabilitation aides;

(5) rehabilitation and therapy aides;

(6) psychiatric services rehabilitation coordinators;

(7) assistant directors of nursing;

(8) 50% of the Director of Nurses' time; and

(9) 30% of the Social Services Directors' time.

The Department shall, by rule, allow certain facilities subject to 77 Ill. Admin. Code 300.4000 and following (Subpart S) to utilize specialized clinical staff, as defined in rules, to count towards the staffing ratios.

Within 120 days of the effective date of this amendatory Act of the 97th General Assembly, the Department shall promulgate rules specific to the staffing requirements for facilities federally defined as Institutions for Mental Disease. These rules shall recognize the unique nature of individuals with chronic mental health conditions, shall include minimum requirements for specialized clinical staff, including clinical social workers, psychiatrists, psychologists, and direct care staff set forth in paragraphs (4) through (6) and any other specialized staff which may be utilized and deemed necessary to count toward staffing ratios.

Within 120 days of the effective date of this amendatory Act of the 97th General Assembly, the Department shall promulgate rules specific to the staffing requirements for facilities licensed under the Specialized Mental Health Rehabilitation Act of 2013. These rules shall recognize the unique nature of individuals with chronic mental health conditions, shall include minimum requirements for specialized clinical staff, including clinical social workers, psychiatrists, psychologists, and direct care staff set forth in paragraphs (4) through (6) and any other specialized staff which may be utilized and deemed necessary to count toward staffing ratios.

(b) (Blank). Beginning January 1, 2011, and thereafter, light intermediate care shall be staffed at the same staffing ratio as intermediate care.

(b-5) For purposes of the minimum staffing ratios in this Section, all residents shall be classified as requiring either skilled care or intermediate care.

As used in this subsection:

"Intermediate care" means basic nursing care and other restorative services under periodic medical direction.

"Skilled care" means skilled nursing care, continuous skilled nursing observations, restorative nursing, and other services under professional direction with frequent medical supervision.

(c) Facilities shall notify the Department within 60 days after the effective date of this amendatory Act of the 96th General Assembly, in a form and manner prescribed by the Department, of the staffing ratios in effect on the effective date of this amendatory Act of the 96th General Assembly for both intermediate and skilled care and the number of residents receiving each level of care.

(d)(1) (Blank). Effective July 1, 2010, for each resident needing skilled care, a minimum staffing ratio of 2.5 hours of nursing and personal care each day must be provided; for each resident needing intermediate care, 1.7 hours of nursing and personal care each day must be provided.

(2) (Blank). Effective January 1, 2011, the minimum staffing ratios shall be increased to 2.7 hours of nursing and personal care each day for a resident needing skilled care and 1.9 hours of nursing and personal care each day for a resident needing intermediate care.

(3) (Blank). Effective January 1, 2012, the minimum staffing ratios shall be increased to 3.0 hours of nursing and personal care each day for a resident needing skilled care and 2.1 hours of nursing and personal care each day for a resident needing intermediate care.

(4) (Blank). Effective January 1, 2013, the minimum staffing ratios shall be increased to 3.4 hours of nursing and personal care each day for a resident needing skilled care and 2.3 hours of nursing and personal care each day for a resident needing intermediate care.

(5) Effective January 1, 2014, the minimum staffing ratios shall be increased to 3.8 hours of nursing and personal care each day for a resident needing skilled care and 2.5 hours of nursing and personal care each day for a resident needing intermediate care.

(e) Ninety days after the effective date of this amendatory Act of the 97th General Assembly, a minimum of 25% of nursing and personal care time shall be provided by licensed nurses, with at least 10% of nursing and personal care time provided by registered nurses. These minimum requirements shall remain in effect until an acuity based registered nurse requirement is promulgated by rule concurrent with the adoption of the Resource Utilization Group classification-based payment methodology, as provided in Section 5-5.2 of the Illinois Public Aid Code. Registered nurses and licensed practical nurses employed by a facility in excess of these requirements may be used to satisfy the remaining 75% of the nursing and personal care time requirements. Notwithstanding this subsection, no staffing requirement in statute in effect on the effective date of this amendatory Act of the 97th General Assembly shall be reduced on account of this subsection.

(f) The Department shall adopt rules on or before January 1, 2020 establishing a system for determining compliance with minimum direct care staffing standards and the requirements of 77 Ill. Adm. Code 300.1230. Compliance shall be determined at least quarterly using the Centers for Medicare and Medicaid Services' payroll-based journal and the facility's census and payroll data, which shall be obtained quarterly by the Department. The Department shall, at minimum, use the quarterly payroll-based journal and census and payroll data to calculate the number of hours provided per resident per day and compare this ratio to the minimums required by this Section as impacted by a waiver of the percentage requirement under Section 3-303.1. The Department shall publish the data quarterly on its website.

In enforcing the minimum staffing ratios, the Department shall take into account that transitions between intermediate care and skilled care occur regularly.

(g) The Department shall adopt rules by January 1, 2020 establishing monetary penalties for facilities not in compliance with minimum staffing standards under this Section. No monetary penalty may be issued during the implementation period, which shall be July 1, 2020 through September 30, 2020. If a facility is found to be noncompliant during the implementation period, the Department shall provide a written notice identifying the staffing deficiency and require the facility to provide a sufficiently detailed correction plan to meet the statutory minimum staffing levels. Monetary penalties shall be imposed beginning no later than October 1, 2020 and quarterly thereafter and shall be based on the latest quarter for which the Department has data.

Monetary penalties shall be established based on a formula that calculates the cost of wages and benefits for the missing staff hours and shall be no less than twice the calculated cost of wages and benefits for the missing staff hours during the quarter. The penalty shall be imposed regardless of whether the facility has committed other violations of this Act during the same quarter. The penalty may not be waived; however, if the violation is not more than a 5% deviation of the required minimum staffing requirements, the Department shall have the discretion to determine the gravity of the violation and, taking into account mitigating and aggravating circumstances and facts, may reduce the penalty amount. Nothing in this Section precludes a facility from being given a high risk designation for failing to comply with this Section that, when cited with other violations of this Act, increases the otherwise applicable penalty.

(h) A violation of the minimum staffing requirements under this Section is, at minimum, a Type "B" violation. In the event that the violation is not more than a 5% percent deviation of the required minimum staffing requirements, the Department shall have the discretion to determine the gravity of the violation and, taking into account mitigating and aggravating circumstances and facts, may assess a different type or class of violation.

(Source: P.A. 97-689, eff. 6-14-12; 98-104, eff. 7-22-13.)

(210 ILCS 45/3-209) (from Ch. 111 1/2, par. 4153-209)

Sec. 3-209. Required posting of information.

(a) Every facility shall conspicuously post for display in an area of its offices accessible to residents, employees, and visitors the following:

(1) Its current license;

(2) A description, provided by the Department, of complaint procedures established under this Act and the name, address, and telephone number of a person authorized by the Department to receive complaints;

(3) A copy of any order pertaining to the facility issued by the Department or a court; and

(4) A list of the material available for public inspection under Section 3-210.

(b) A facility that has received a notice of violation for a violation of the minimum staffing requirements under Section 3-202.05 shall display, for 6 months following the date that the notice of violation was issued, a notice stating in Calibri (body) font and 26-point type in black letters on an 8.5 by 11 inch white paper the following:

"Notice Dated: ................... This facility did not have enough staff to meet the minimum staffing ratios for facility residents during the period from ........ to ....... Posted at the direction of the Illinois Department of Public Health."

The notice must be posted, at a minimum, at all publicly used exterior entryways into the facility, inside the main entrance lobby, and next to any registration desk for easily accessible viewing. The notice must also be posted on the main page of the facility's website. The Department shall have the discretion to determine the gravity of any violation and, taking into account mitigating and aggravating circumstances and facts, may reduce the requirement of, and amount of time for, posting the notice.

(Source: P.A. 81-1349.)

(210 ILCS 45/3-305.8 new)

Sec. 3-305.8. Database of nursing home quarterly reports and citations.

(a) The Department shall publish the quarterly reports of facilities in violation of this Act in an easily searchable, comprehensive, and downloadable electronic database on the Department's website in language that is easily understood. The database shall include quarterly reports of all facilities that have violated this Act starting from 2005 and shall continue indefinitely. The database shall be in an electronic format with active hyperlinks to individual facility citations. The database shall be updated quarterly and shall be electronically searchable using a facility's name and address and the facility owner's name and address.

(b) In lieu of the database under subsection (a), the Department may publish the list mandated under Section 3-304 in an easily searchable, comprehensive, and downloadable electronic database on the Department's website in plain language. The database shall include the information from all such lists since 2005 and shall continue indefinitely. The database shall be in an electronic format with active hyperlinks to individual facility citations. The database shall be updated quarterly and shall be electronically searchable using a facility's name and address and the facility owner's name and address.

Section 99. Effective date. This Act takes effect upon becoming law.".